For the London Free Press – April 12, 2010

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Copyright infringement: Even its own employees couldn’t keep track of everything it posted or left on the site as promotions

Three years ago, Viacom sued YouTube for $1 billion based on claims of copyright infringement for unauthorized posting of Viacom copyrighted material.

This case is complex and controversial. Until recently, many documents in the litigation were sealed and not available to the public. Summary judgment materials have now been filed and the parties have gone public with their complaints.

When the documents were released, YouTube’s chief legal counsel, Zavanah Levine, made this surprising blog post:

“For years, Viacom – a media conglomerate in the United States that owns such networks as MTV and Comedy Central – continuously and secretly uploaded its content to YouTube, even while publicly complaining about its presence there. It hired 18 marketing agencies to upload its content to the site. It deliberately ‘roughed up’ the videos to make them look stolen or leaked. It opened YouTube accounts using phony e-mail addresses. It even sent employees to Kinko’s to upload clips from computers that couldn’t be traced to Viacom. And in an effort to promote its own shows, as a matter of company policy, Viacom routinely left up clips from shows that had been uploaded to YouTube by ordinary users.

Executives as high up as the president of Comedy Central and the head of MTV Networks felt ‘very strongly’ that clips from shows like The Daily Show and The Colbert Report should remain on YouTube.

Viacom’s efforts to disguise its promotional use of YouTube worked so well even its own employees couldn’t keep track of everything it was posting or leaving up on the site. Viacom demanded the removal of clips it had uploaded to YouTube, only to return to sheepishly ask for their reinstatement. In fact, some of the very clips Viacom is suing us over were actually uploaded by Viacom itself.”

If that is true, it seems inconsistent with Viacom’s lawsuit.

Viacom now states it does not take issue with how YouTube has operated since May 2008. In May 2008, YouTube integrated a Content ID system into its site, which permitted copyright owners to assert ownership over their own content. In doing so, the copyright owner can let YouTube know whether it wants the content blocked or monetized.

The Electronic Frontier Foundation’s take on the case is it comes down to Viacom seeking to change the law on copyright in the U.S. to ensure that online service providers be required to implement and pay for copyright filtering. This type of argument has already been considered and rejected by U.S. courts.

The Digital Millennium Copyright Act (DMCA) provides safe harbours for U.S. hosting providers. It provides a protocol for service providers to follow when anyone alleges someone has posted anything on the service provider’s service that infringes copyright. So long as the service provider follows the protocol, it’s not liable for copyright infringement.

The UK government rammed through a controversial bill that includes provisions similar to the much maligned three strikes laws.    

Its beyond me why governments insist on urgently passing this kind of thing without thinking it through, and without taking the time to really listen to various viewpoints, or understand where technology, the economy, and culture is headed.

Detail on the controversy can be found on the BBC news, Boing Boing, and Techdirt and another on Techdirt.

The Ontario Reports is a weekly publication sent by the Law Society of Upper Canada to all Ontario lawyers.  It contains court decisions, law society notices, and ads aimed at lawyers. 

Frankly, its a lot of paper – and changing it to a virtual edition is long overdue.  The first one arrived today.

They have even been the subject of a couple of parody videos.

http://www.youtube.com/watch?v=44TRf9E4LrQ

http://www.youtube.com/watch?v=hTHjLsbMI98

The digital edition needs work, though.  It follows the usual path of offering up a digital image of the paper product, without a lot of thought as to how readers will consume it – or ignore it.  Hopefully this is OR’s 1.0, with 2.0 to follow.

Then there is this head scratcher.   The email that sends the link to it contains this:

E-Mail Confidentiality Disclaimer

This communication is intended for use by the individual(s) to whom it is specifically addressed and should not be read by, or delivered to, any other person. Such communication may contain privileged or confidential information. If you have received this communication in error, please notify The Law Society of Upper Canada at … and permanently delete the communication. Thank you for your cooperation.

Everything in the Ontario Reports is public – and the reports themselves contain a copyright notice – so why is this needed?

That’s the title of my Slaw post for today.  It reads as follows:

We have not heard much about this lately, partly because a summary judgment in 2007 stated that Novell owned the Unix code.   A jury confirmed last week that SCO had not acquired the copyright to Unix from Novell in an asset purchase agreement.

The significance of this to the world at large is that Linux was derived from Unix.  SCO launched a long standing battle claiming it owned Unix, and thus had rights to certain code within Linux, and thus the right to be compensated for Linux use. 

Apparently, SCO is not yet giving up though – there is some suggestion that it might continue the fight, however futile it might be.

For more details, see this Groklaw post.

A few weeks ago I wrote about the North Face clothing company suing the seller of South Butt parody apparel.

Apparently they have settled, and South Butt remains in business.  As is typical with settlements, the terms have not been made public.

See a Techdirt comment on the settlement, and an AmLaw Daily report.

For the London Free Press – April 5, 2010

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Court upholds judge’s decision a hyperlink to defamatory material doesn’t make the person posting the link liable for defamation

The British Columbia Court of Appeal decision in Crookes vs. Newton dealt with the issue of whether posting hyperlinks on one’s own website that link to defamatory content on other websites can trigger defamation liability.

Jon Newton, the defendant, owns and operates the p2pnet website. He posted an article on July 18, 2006, with hyperlinks to websites that contained articles defaming the plaintiff, Wayne Crookes, a Vancouver businessperson, president and sole shareholder of West Coast Title Search Ltd., and a volunteer for the Green Party of Canada.

Crookes and his lawyer asked Newton to remove the hyperlinks. Newton refused. It was Crookes’s position that Newton was a publisher of the impugned articles found at the hyperlinked websites. Newton was of the view there was no need to remove them because they were “merely a hyperlink.”

In October 2008, the judge dismissed the action against Newton for damages on the basis that Crookes had failed to prove publication of the alleged hyperlinked defamatory material.

That order was appealed to the B.C. Court of Appeal. That court confirmed the mere fact that a person may include a hyperlink on his own website linking to another site does not make that person publisher of the content of the hyperlinked site. And if that person is not the publisher, he is not liable for any defamation on the linked site.

The court set out two aspects to the publication element in defamation cases: the first, concerning “the act of promulgating the impugned item,” and the second relating to “the receipt of that item by a person within the court’s jurisdiction.”

On the first point, the court noted there was a barrier between the article and the hyperlinked websites that had to be bridged by the reader. The court of appeal’s view was in such a situation, the reader leaves the original article and enters a different, and independent, website.

The majority disagreed with the minority finding that Newton’s article served “as words of encouragement, or an invitation” to browsers. Instead, the court agreed with the judge’s reasons that “the circumstances of a case may add more so as to demonstrate a particular hyperlink is an invitation or encouragement to view the impugned site, or adoption of all or a portion of its contents.”

On the second point, the court acknowledged there may be cases where more information is available to support an inference that a person in the court’s jurisdiction got access to the impugned articles by clicking on them. But that information was not available in this case.

The appeal court ultimately upheld the judge’s decision, ruling that a mere hyperlink to defamatory material does not make the person posting the hyperlink liable for defamation.

But if the linking website endorses the material or encourages the browser to go to the hyperlinked website, the linking website may be held liable because that might constitute publication.

UPDATE:  After this article went to press, the Supreme Court of Canada announced that it will hear an appeal of this case – so stay tuned to see if the Supreme Court has different thoughts or confirms this decision.

Over the last while we have seen an increasing number of attempted frauds against lawyers.   Most are a scheme where a new client wants help to collect a debt.   The debt gets collected – by way of a fraudulent cheque – and pressure is put on to pay the funds to the client before the cheque clears.

The fraudsters are getting more sophisticated in their approach.  See, for example, this article by Dan Pinnington on Slaw  that describes an actual situation.

The fraudsters sometimes use spam techniques.  For example, this email – supposedly from a company in Hong Kong – was caught in my spam filter today.

Dear Sir,

The purpose of this email is to inform you that we found your web profile very interesting and would like to enter into a one year Attorney-Client Retainer agreement with you as our accredited Attorney to collect my company’s several overdue accounts receivable from our debtors in that region.

The most obvious clue that this is not legtimate (in addition to our spam filter realizing it is spam) is that if they had actually checked my web profile, it says nothing to suggest that my practice deals with collections or litigation.